Obama campus assault guidance gets scrapped under Trump

﻿Education Secretary Betsy DeVos﻿ has said the Obama-era policy was unfairly skewed against those accused of sexual assault.

Photo: TOM BRENNER, STF

WASHINGTON - The Trump administration on Friday scrapped Obama-era guidance on investigating campus sexual assault, replacing it with new instructions that allow universities to require higher standards of evidence when handling complaints.

Education Secretary Betsy ­DeVos has said that the policy had been unfairly skewed against those accused of assault and had "weaponized" the Education Department to "work against schools and against students."

The change is the latest in President Donald Trump's broader effort to roll back former President Barack Obama's policies. Women's rights groups slammed Friday's decision, saying it will discourage students from reporting assault.

The guidance released in 2011 and updated in 2014 instructed universities to use a "preponderance of the evidence" standard when assessing and investigating a claim of sexual assault.

DeVos' new interim guidelines let colleges choose between that standard and a "clear and convincing evidence" standard, which is harder to meet. Those rules will be in place temporarily while the Education Department gathers comments from interest groups and the public and writes new guidance.

"This interim guidance will help schools as they work to combat sexual misconduct and will treat all students fairly," DeVos said in a statement.

"Schools must continue to confront these horrific crimes and behaviors head-on. There will be no more sweeping them under the rug. But the process also must be fair and impartial, giving everyone more confidence in its outcomes," she said.

Andrew Miltenberg, a New York lawyer who represents students accused of sexual assault, described Obama's standard as only "50.1 percent certain" and said that it ignored the presumption of innocence and put the burden on the accused to prove that the assault did not happen. Miltenberg said the system proposed by DeVos is much more fair.

"Certainly, it's a much more stringent standard and one that is less open to subjective interpretation," Miltenberg said.

A student may choose whether to report a claim of assault to police or to have it investigated by a university under a federal provision against sexual discrimination. Many students choose not to turn to law enforcement because many such cases go unprosecuted as police and the courts require higher standards of evidence. Also, many victims are traumatized and may feel more comfortable dealing with university investigators rather than with police.

DeVos' letter comes as a dozen Texas universities and colleges are under investigation over alleged Title IX violations.

University of Houston spokesman Mike Rosen said shortly after Friday's announcement that UH would have no immediate change to its policies, though he cautioned that his statement was after an initial review of the Education Department's communications.

UT-Austin spokesman J.B. Bird said the university is reviewing the letter.

Texas A&M spokeswoman Amy Smith said she anticipated the university would see changes after the federal guidance. Administrators will meet next week, she said.

The Office for Civil Rights has 14 open investigations, including into Texas A&M, Baylor University and UH, that have been initiated over the last three years. It was not immediately clear how the new guidance would change these investigations.

Baylor has been a central figure in discussions about Title IX. The Baptist university faces multiple Title IX lawsuits in which students allege the university mishandled their sexual assault allegations.

But lawyers in recent months have said they had observed a backlash to Obama-era policies on Texas college campuses. Two male students accused of sexual misconduct said the UT-Austin and Texas A&M botched their cases, filing lawsuits and complaints, for example.

Women's rights advocates lashed out at Friday's change.

Fatima Goss Graves, President and CEO of the National Women's Law Center, said the new rule will have "devastating" impact on students and schools.